Judicial discourses on women's agency in violent relationships: Cases from California

Abstract

Adult female targets of domestic violence by male perpetrators have commonly been described as helpless and passive. This is consistent with the criminal justice system's perception that true “victims” have little culpability or agency in a violent assault. Otherwise, the “victims” are more likely to be defined as participants in the violent act, and thus unworthy of official protection. This study examines court opinions involving convictions of male offenders of domestic violence against their female partners and ex-partners. The purpose is to understand the development of judicial knowledge as to whether women in relationships with violent men are socially constructed as worthy and legitimate victims of violence. The 60+ appellate case opinions in the analysis are those where a California trial court accepted expert testimony on domestic violence in prosecuting the male offenders to explain the women's actions regarding their violent relationships. California was chosen because of the state's progressive and unique evidentiary statutes that permit a broad range of evidence in criminal prosecutions of domestic violence, including expert witnesses. In reviewing the judicial opinions that comprise the corpus, I found that an underlying assumption evident in the judicial discourses is that abused women would, should or could easily exercise agency in ending an abusive relationship and, once it was ended, refuse to reengage in their abusive relationships. Using critical discourse analysis, this study shows that, in constructing women's agency in resisting abusive relationships, judicial discourse tended to rely more heavily upon expert testimony and, in a few cases, on prosecutorial arguments, than on the testimony (i.e. voice) of the female victims themselves. In this process, the women's voices were silenced or marginalized as experts’ constructions of victimized women were preferred.